Case C‑488/19

JR

(Request for a preliminary ruling from the High Court (Ireland))

Judgment of the Court (First Chamber), 17 March 2021

(Reference for a preliminary ruling – Police and judicial cooperation in criminal matters – European arrest warrant – Framework Decision 2002/584/JHA – Scope – Article 8(1)(c) – Concept of ‘enforceable judgment’ – Offence giving rise to a conviction by a court of a third State – Kingdom of Norway – Judgment recognised and enforced by the issuing State by virtue of a bilateral agreement – Article 4(7)(b) – Grounds for optional non-execution of the European arrest warrant – Extra-territorial offence)

1. Questions referred for a preliminary ruling – Urgent preliminary ruling procedure – Expedited preliminary ruling procedure – Conditions – Circumstances justifying rapid treatment – Need to provide the Court with sufficient information on those circumstances – Lack of information – Refusal to apply those procedures

   (Statute of the Court of Justice, Art. 23a; rules of Procedure of the Court of Justice, Arts 105(1) and 107)

   (see paragraphs 38-40)

2. Judicial cooperation in criminal matters – Framework Decision on the European arrest warrant and the surrender procedures between Member States – Substance and form of the European arrest warrant – Concept of judicial decision – Sentence imposed by a court of a third State – Not included – Acts of recognition and enforcement of that sentence in the issuing State pursuant to a bilateral agreement – Included – Conditions – Imposition of a custodial sentence of at least four months – Obligation to provide for judicial review of the conditions for the adoption of that sentence

   (Council Framework Decision 2002/584, as amended by Framework Decision 2009/299, Arts 1(1), 2(1) and 8(1)(c))

   (see paragraphs 46-52, 55-58, 61, operative part 1)

3. Judicial cooperation in criminal matters – Framework Decision on the European arrest warrant and the surrender procedures between Member States – Grounds for optional non-execution of the European arrest warrant – Offence committed outside the territory of the issuing State – Meaning – Offence committed in the territory of a third State which gave rise to a sentence imposed in that State – European arrest warrant based on a judicial decision of the issuing State permitting the recognition and execution of that sentence – Account taken of the criminal jurisdiction of the third State for the purposes of establishing the extra-territorial nature of the offence

   (Council Framework Decision 2002/584, as amended by Framework Decision 2009/299, Art. 4(7)(b))

   (see paragraphs 66, 68, 69, 73, 74, 76, 78-80, operative part 2)

4. Judicial cooperation in criminal matters – Framework Decision on the European arrest warrant and the surrender procedures between Member States – Purpose – Replacing the system of extradition between Member States with a system of surrender between judicial authorities

   (Council Framework Decision 2002/584, as amended by Framework Decision 2009/299)

   (see paragraphs 70, 71)

Résumé

In 2014 JR, a Lithuanian national, was sentenced in Norway to a term of imprisonment. Pursuant to a bilateral agreement between Norway and Lithuania, ( 1 ) that judgment was recognised and became enforceable in Lithuania and JR was transferred there so that the remaining sentence could be executed. In November 2016, he benefited from a conditional release measure, but it was subsequently revoked and the remainder of his sentence was then ordered to be executed. JR having absconded to Ireland, the Lithuanian authorities issued a European arrest warrant (‘EAW’) against him. In January 2019, JR was arrested in Ireland.

Before the High Court (Ireland), JR disputes his surrender to the Lithuanian authorities by relying, first, on the fact that only Norway could request his extradition and, second, on the ground for optional non-execution of an EAW relating to the extra-territorial nature of the offence. ( 2 ) In his view, since the offence giving rise to the EAW was committed in a State (Norway) other than the State issuing the EAW, Ireland must refuse to execute that EAW.

It was in that context that the High Court referred the matter to the Court of Justice. It asks whether an EAW may be issued with a view to executing a sentence imposed by a court of a third State but which, pursuant to a bilateral agreement, has been recognised and executed in part in the issuing Member State. If so, that court raises the question of the classification of the offence as an ‘extraterritorial offence’, in order to ascertain whether the ground for optional non-execution concerned is applicable in the present case.

Findings of the Court

In the first place, the Court notes that an EAW must be based on a national judicial decision that is separate from the decision issuing the EAW. From that point of view, a judgment delivered by a court of a third State imposing a custodial sentence cannot, as such, constitute the basis of an EAW. By contrast, the Court holds that an EAW may be based on an act of a court of the issuing Member State recognising such a judgment and rendering it enforceable, provided that the custodial sentence at issue is of at least four months.

In reaching that conclusion, the Court notes, first of all, that such acts of recognition and enforcement of a Member State constitute judicial decisions, for the purposes of the EAW Framework Decision, ( 3 ) where they have been adopted for the purpose of executing a sentence. Next, in so far as those acts allow a judgment to be enforced, in that Member State, it is appropriate to treat them, as the case may be, as an ‘enforceable judgment’ or an ‘enforceable decision’. Finally, in accordance with the EAW Framework Decision, ( 4 ) such acts fall within its scope, provided that the sentence in question is a custodial sentence of at least four months. The sentence to be executed is not required to stem from a judgment delivered by the courts of the issuing Member State or by those of another Member State.

However, the Court adds that the judicial authorities of the issuing Member State are required to ensure compliance with the requirements inherent in the EAW system in relation to procedure and fundamental rights. More specifically, the law of the issuing Member State must make provision for judicial review to verify that, in the procedure leading to the adoption in the third State of the sentencing judgment, the fundamental rights of the person concerned have been complied with. This applies, in particular, to compliance with the obligations arising under Article 47 (right to an effective remedy and to a fair trial) and Article 48 (presumption of innocence and rights of defence) of the Charter of Fundamental Rights of the European Union.

In the second place, the Court holds that, in order to determine whether the offence giving rise to the sentence imposed in a third State and the subsequent issuing of an EAW was committed ‘outside the territory of the issuing Member State’, ( 5 ) it is necessary to take into consideration the criminal jurisdiction of that third State (in this instance, Norway), and not that of the issuing Member State.

In that regard, first, the Court notes that such an interpretation is compatible with the objective pursued by the ground for optional non-execution of an EAW relating to the extra-territorial nature of the offence. That ground makes it possible to refuse to grant an EAW seeking execution of a sentence imposed for an offence prosecuted under an international criminal jurisdiction that is broader than that recognised by the law of the executing State. Second, the Court notes that, by contrast, an interpretation to the contrary would jeopardise the attainment of the general objectives of the EAW Framework Decision. If the executing State could refuse surrender in a situation where the judgment delivered by the court of a third State has been recognised by the State issuing the EAW, that refusal not only would be liable to delay the execution of the sentence, but could also lead to the impunity of the requested person. Moreover, it might discourage Member States from requesting the recognition of judgments and, in a situation such as that in the present case, encourage the State enforcing a recognised judgment to limit the use of conditional release instruments.

( 1 ) Bilateral Agreement on the recognition and enforcement of judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty concluded between the Kingdom of Norway and the Republic of Lithuania on 5 April 2011.

( 2 ) That ground is laid down in Article 4(7)(b) of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (OJ 2002 L 190, p. 1), as amended by Council Framework Decision 2009/299/JHA of 26 February 2009 (OJ 2009 L 81, p. 24) (‘the EAW Framework Decision’).

( 3 ) See Article 1(1), Article 2(1) and Article 8(1)(c) of the EAW Framework Decision.

( 4 ) See Article 1(1) and Article 2(1) of the EAW Framework Decision.

( 5 ) See Article 4(7)(b) of the EAW Framework Decision.